Gaffiero and National Disability Insurance Agency

Case [2024] AATA 2641

Gaffiero and National Disability Insurance Agency [2024] AATA 2641 (26 July 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:          2022/5493

Re:Simone Gaffiero

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member K. Parker

Date:26 July 2024

Place:Melbourne

The Tribunal sets aside the decision under review and remits this matter to the NDIA with a direction that it approves a new statement of participant supports (‘SOPS’) for Ms Gaffiero which includes funding for the following supports:

(a)the assistive technology (‘AT’) supports as set out in paragraphs [334(a), (e) and (f)] of these Reasons for Decision;

(b)the cost of Bellman Visit wall mount kits and installation of additional power points as required (upon provision of a quote, to be given to the National Disability Insurance Agency prior to the approval of a new SOPS for Ms Gaffiero pursuant to this remittal); and

(c)to replicate all other supports in Ms Gaffiero’s current SOPS (except for any one-off supports for which the funding has already been expended and except for the $1,000 for general AT funding in her current SOPS, which is to be replaced by funding for the supports referred to in the above two paragraphs).

.................[sgd].........................

Senior Member K. Parker

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – review of supports – adult participant who is deaf – review of statement of participant supports in NDIS plan – whether request for funding for the purchase and installation of a specific brand of hard-wired visual alerting system (“Visualert”) should be included – whether requested support should be funded under the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) – whether requested support represents “value for money” – requested support does not meet the “reasonable and necessary support” criteria under s 34(1) of the NDIS Act – instead, the Applicant should be provided with funding for the cost of supplementing her current portable Bellman Visit alerting system – decision set aside and remitted with a direction that a new statement of participant supports be approved for the Applicant to include funding for the cost of supplementing the Applicant’s current portable alerting system

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Code of Conduct) Rules 2018 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)

Cases

Farman and National Disability Insurance Agency [2022] AATA 2880
McGarrigle v National Disability Insurance Agency (2017) 252 FCR 121
Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2) [2023] FCA 852

Secondary Materials

Ahrens, M. (2021). NFPA’s “Smoke Alarms in US Home Fires”

Operation Guidelines issued by the National Disability Insurance Agency entitled “Assistive Technology” (updated on 20 December 2023) – Assistive Technology | NDIS

Operational Guidelines issued by National Disability Insurance Agency entitled “Principles we follow to create your plan” (updated on 25 September 2023) - What principles do we follow to create your plan? | NDIS

Operational Guidelines issued…

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AGLC
Gaffiero and National Disability Insurance Agency [2024] AATA 2641
Case
[2024] AATA 2641
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Ms Gaffiero against a decision by the National Disability Insurance Agency (NDIA) regarding funding for assistive technology under her NDIS plan. Ms Gaffiero, who is profoundly deaf, sought funding for the purchase and installation of a specific hard-wired visual alerting system, known as "Visualert," to notify her of visitors and smoke alarms. The NDIA had determined that this requested support did not meet the "reasonable and necessary support" criteria under section 34(1) of the National Disability Insurance Scheme Act 2013 (Cth). The Administrative Appeals Tribunal (AAT) was required to review this decision.

The primary legal issue before the Tribunal was whether the Visualert system constituted a "reasonable and necessary support" for Ms Gaffiero under the NDIS Act. This involved assessing whether the proposed support represented "value for money" and was appropriate for her needs, considering her existing alerting systems and the availability of alternative solutions. The Tribunal also had to consider a potential conflict of interest raised by the NDIA concerning the occupational therapist who recommended the Visualert system, as her employer and employer's husband had prior involvement with the Visualert system.

The Tribunal reasoned that while Ms Gaffiero required additional technology to ensure her safety and notification of important events, the Visualert system, as proposed, was not the most appropriate or cost-effective solution. It found that the requested support did not meet the "value for money" criterion, particularly when compared to supplementing her existing portable alerting system. The Tribunal acknowledged the occupational therapist's recommendation but gave greater weight to expert evidence suggesting that alternative, less expensive options could adequately meet Ms Gaffiero's needs. The Tribunal also addressed the conflict of interest issue, noting that while it was a relevant consideration, it did not ultimately prevent the Tribunal from assessing the merits of the support requested.

Consequently, the Tribunal set aside the NDIA's decision. It remitted the matter back to the NDIA with a direction to approve a new statement of participant supports for Ms Gaffiero. This new statement was to include funding for the cost of supplementing her current portable alerting system, thereby providing a more appropriate and cost-effective solution to meet her notification needs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons set out below, the Tribunal concludes that the acquisition and installation of the Requested Support in Ms Gaffiero’s home, is not a “reasonable and necessary support” for her under s 34(1) of the NDIS Act and therefore, should not be funded under her NDIS plan. The Tribunal sets aside the decision under review and remits this matter for reconsideration by the Respondent with a direction that it approves a new statement of participant supports for Ms Gaffiero which includes funding for the additional supports as set out in paragraph [351] below, to supplement Ms Gaffiero’s existing portable alerting system.BACKGROUND The parties lodged a Statement of Agreed Facts with the Tribunal. This Statement sets out the following agreed background facts:(a)Ms Gaffiero is 55 years old (56 years old as of the date of these Reasons for Decision);(b)Ms Gaffiero has been profoundly deaf since birth. Ms Gaffiero has hearing aids but only finds them useful for watching films;(c)Ms Gaffiero lives with three family members: her husband, 13-year-old daughter, and 30-year-old son; (d)Ms Gaffiero’s husband and daughter are deaf and participants in the NDIS;(e)the Gaffiero family has lived in their present home in an outer suburb of Melbourne for approximately six years;(f)Ms Gaffiero works part time as a disability support worker;(g)Ms Gaffiero “wears glasses to correct a ‘lazy eye’”;(h)Ms Gaffiero needs additional technology to be notified of visitors at her front door, and if a smoke alarm is triggered in her home;(i)Ms Gaffiero owns:(i)a Ring doorbell (H59); (ii)a Bellman door transmitter;(iii)two or three “standard” smoke alarms.(iv)two or three Bellman fire alarm transmitters;(v)two Bellman flash receivers;[1] and(vi)a Bellman bed shaker.[1] This is a reference to the Bellman Visit Flash Receiver which is manufactured by Bellman & Symfon. Ms Gaffiero is a private owner of her home and reportedly, intends to live in her current home long term.[2][2] NDIA’s Hearing Tender Bundle (‘NDIA’s HTB’), p.319. At the hearing, Ms Gaffiero said that she works as a support worker, on average, about 24 or 25 hours per week (the number of hours are subject to fluctuation).[3] Ms Gaffiero gave evidence that her husband works full time as a mechanic.[4] Reportedly, he works full time from Monday to Friday leaving home at about 3am and returning each work day between 4pm and 6pm.[5] Ms Gaffiero gave evidence that her eldest adult son, referred to above, lives with her and is responsible for himself. She said he works night shift. Reportedly, he works in a service station and is often at home, sleeping, during the day.[6] He is not hard of hearing or deaf.[7][3] Transcript, P-53.[4] Ibid.[5] NDIA’s HTB, p.319.[6] Ibid.[7] Ibid. On 17 November 2021, Ms Gaffiero submitted a 70-page NDIS form entitled “Assessment Template – General Assistive Technology” to the NDIA (‘AT Report’).[8] This AT Report was signed by Ms Gaffiero and completed by Ms Annabelle Beasley, an occupational therapist (OT) employed by Louise Dreyer OT Pty Ltd trading as “Full Life” (‘Full Life’). The AT Report was signed by Ms Beasley on 17 November 2021. Ms Beasley made a recommendation in this report that Ms Gaffiero be funded under the NDIS for the purchase and installation of the Visualert System. [8] Ms Beasley confirmed that she prepared and signed off on the AT Form found at T-Documents pages 17–87 – refer Transcript, P-61.

Evidence

Evidence Before The Court

The NDIA also called the following expert witnesses:(a)Mr Andrew Willis, who is the Managing Director of Word of Mouth Technology Pty Ltd being the Australian distributor of Bellman & Symfon products which comprise the Bellman Visit System. Mr Willis signed an expert witness declaration declaring there could be a perceived conflict of interest because Bellman & Symfon products are discussed as one of the alternative solutions. He states that his expert opinion is based on evidence presented and his “sound knowledge of assistance technology for the Deaf and hard of hearing”;[22] and(b)Mr Daniel Lewkovitz, Calamity Security, who was called as technical expert.[22] NDIA’s HTB, p.254.Documentary evidence and submissions On 7 July 2022, the NDIA lodged a set of documents with the Tribunal pursuant to its obligations under s 37 of the AAT Act (‘T-Documents’) numbering 227 pages. On 16 March 2023, the NDIA lodged an independent OT expert report issued by Ms Barry (‘Ms Barry’s Report’) and a further expert report by Mr Willis (‘Mr Willis’s Report’). On 6 April 2023, the NDIA lodged a further expert report by Mr Lewkovitz (‘Ms Lewkovitz’s Report’). On 30 May 2023, Ms Gaffiero lodged a hearing tender bundle (‘Ms Gaffiero’s HTB’) numbering 99 pages, containing her Statement of Facts, Issues, and Contentions (‘SFIC’)[23] and additional evidence including, without limitation, several manuals for the alerting systems and a “Technical Note” by Ms Christina Knor, Fire Safety Engineer, and Certifier Fire Safety (Former C10) accredited by the NSW Building Professionals Board, CK Fire & Safety, dated 29 December 2022. Ms Gaffiero also lodged some video footage comprising video statements made by Ms Gaffiero describing, in Auslan, her lived experience and some video footage showing that one Phillips Hue light was flashing when the front doorbell was activated, but another Philips Hue light in the next room was not flashing.[23] Ms Gaffiero also lodged the following further submissions in this proceeding, about the independent assessment, dated 22 December 2022 and about the summons to give evidence addressed to Ms Dreyer, dated 12 July 2023, in addition to her SFIC. On 26 June 2023, the NDIA lodged its HTB (‘NDIA’s HTB’) numbering 452 pages, containing:(a)its SFIC[24];(b)a duplicate of the T-Documents;(c)the two expert reports referred to in paragraph [27] and [28] above;(d)a range of technical information;(e)Fire Rescue Vic brochure and booklet;(f)a report by Mr Jacob Foster, CEO, FCF Fire & Electrical, dated 20 June 2023; and(g)company extract information issued by the Australian Securities and Investment Commission (‘ASIC’).[24] The NDIA lodged further submissions in this proceeding, about the independent assessment dated 22 December 2022 and about summons to give evidence addressed to Ms Dreyer, dated 13 July 2023, in addition to its SFIC. On 4 August 2023, a Witness Statement by Ms Dreyer and 28 annexures, signed on 3 August 2023 (‘Ms Dreyer’s Statement’) numbering 232 pages, was lodged with the Tribunal. Ms Dreyer’s Statement is referred to in detail below under the heading “Conflict of Interest Issue – OT’s expert report by Ms Beasley of Full Life”.

Decision

Reasons for decision

The Tribunal notes that the Conflict Statement explains how Full Life says it discloses and manages the conflict of interest and represents that it does not exclusively recommend Visualert to deaf participants, notably:Visualert™ is recommended:·on a case-by-case basis where, in the therapist’s opinion, the participant’s notification needs can be best met by a hardwired alerting system; and/or·where the participant’s specifically request the Visualert™ system.Alternative lower-cost notification devices are considered, as well as participants’ experiences of trialling alternative options.Alternative lower-cost devices (such as the Ring Doorbell and Bellman & Symfon devices) are recommended to many participants. These devices are often recommended where:· participants reside in small dwellings (such as one-bedroom units);· properties are not participants’ permanent and long-term residences;· participants need a short-term solution while waiting for approval of Visualert™; or· Participants choose not to install the Visualert™ system for any reason.It is important to note that a far greater proportion of recommendations for alternative lower-cost devices are made in comparison to the proportion of recommendations for Visualert™.[Full Life OT] records show that of the clients with hearing loss, to date: (as of 5 March 2021)·approximately 30% of clients have been recommended Visualert™; and·the remaining proportion of clients have been recommended other lower-cost notification devices.AAT decision in Farman and resulting correspondence between Full Life and the NDIS Quality and Safeguards Commission In Ms Dreyer’s Statement, she refers to a previous decision of the Tribunal (as presently constituted) in the matter of Farman and National Disability Insurance Agency [2022] AATA 2880 (2 September 2022) (Farman). She also refers to a number of other decisions by the AAT in respect of the Visualert System. The Tribunal is required to consider each application before it based on its individual circumstance in undertaking merits review. As individual circumstances may vary from participant to participant the Tribunal has not been influenced by the outcome in any of these AAT decisions, including Farman. Nevertheless, the Tribunal will address the references to Farman as made by Ms Dreyer in her statement, as they form part of the history of an exchange of correspondence between Full Life and the NDIS Quality and Safeguards Commission (‘Commission’) which is relevant to the Tribunal’s assessment about the objectivity of Ms Beasley as an employee under the supervision and control of Ms Dreyer of Full Life. In Farman, the Tribunal addressed a conflict of interest issue arising in relation to the joint recommendation made by Ms Dreyer as the lead therapist and one of Full Life’s employee OTs, in an AT report recommending that the applicant in that matter, Ms Farman, be funded for the purchase and installation of the Visualert System in Ms Farman’s home.

Ratio Decidendi

Legal Principle Established

The Tribunal has considered the following Operational Guidelines published by the NDIA on its website:(a)NDIA Operational Guidelines entitled “Principles we follow to create your plan” (updated on 25 September 2023);[35](b)NDIA Operational Guidelines entitled “Reasonable and necessary supports” (updated on 6 October 2023) (‘NDIA R&N Guidelines’);[36] and(c)NDIA Operational Guidelines entitled “Assistive Technology” (updated on 20 December 2023) (‘NDIA AT Guidelines’).CONSIDERATION [35] What principles do we follow to create your plan? | NDIS[36] Reasonable and necessary supports | NDISConflict of Interest Issue - OT’s expert report by Ms Beasley of Full Life Ms Beasley’s oral and written evidence forms the primary foundation of Ms Gaffiero’s contention that the criteria under s 34(1) of the NDIS Act are met in respect of the Requested Support. Other expert witnesses who gave evidence in this matter, in particular, Mr Lewkovitz and Mr Willis, disagreed with many of the factual assertions and opinions expressed by Ms Beasley. The Tribunal will need to decide how much weight to place on the competing evidence from those experts, including Ms Beasley’s expert evidence, and also the evidence of Ms Barry, who is the independent OT engaged by the NDIA to prepare a report. The Tribunal considers it appropriate, at the outset, to address the NDIA’s contention that the Tribunal should disregard the expert evidence of Ms Beasley due to the existence of a conflict of interest which impacts upon her objectivity and therefore, the reliability of her evidence. Specifically, the NDIA contends that a conflict of interest arises because:(a)Ms Beasley’s employer, Full Life, and Full Life’s director and lead therapist, Ms Dreyer, was responsible for designing the initial concept for the creation of the Visualert System; and (b)Ms Dreyer’s husband, Mr Dreyer, was formerly involved in the marketing and distribution of the Visualert System in Australia through Assistive Tech. History of the conflict of interest issue Upon being summonsed to appear at the hearing and before so appearing, of her own volition, Ms Dreyer engaged a lawyer to assist her to prepare and lodge with the Tribunal a lengthy and detailed 15-page witness statement signed on 3 August 2023 (‘Ms Dreyer’s Statement’) including 217 pages of annexures.[37] [37] Ms Dreyer’s Statement was lodged with the Tribunal on 4 August 2023. Ms Dreyer’s Statement addressed the above conflict of interest issue by providing an account in relation to the following:[38](a)the genesis and creation by Ms Dreyer of the design concept for the Visualert System and her collaboration with an electrician, namely, Mr Scott Egan, Egan Electrical Pty Ltd;(b)Ms Dreyer’s husband, Mr Johannes Christiaan Du Plessis Dreyer, previously owned and directed the company which is the Australian marketer and distributor of the Visualert System, namely, Seventeen’s Dream Pty Ltd ACN 611 809 879.[39] This company subsequently changed its company name to Assistive Tech Suppliers Pty Ltd (“Assistive Tech”);[40] (c)at the time of registration of Louise Dreyer OT Pty Ltd (‘Full Life’), Ms Dreyer’s husband was Full Life’s company secretary; and(d)Full Life issued the AT Report, signed by Ms Beasley, in support of Ms Gaffiero’s request to receive funding for the purchase and installation of the Visualert System.[38] Ms Dreyer’s Statement, [27].[39] NDIA’s HTB, p.451.[40] Ms Dreyer’s Statement, [63].